Delhi District Court
Regional Headquarter For Northern ... vs Om Prakash on 29 April, 2022
: IN THE COURT OF :
DR. V.K. DAHIYA
ADDITIONAL DISTRICT JUDGE01:
SOUTHWEST DISTRICT: DWARKA COURTS:
NEW DELHI
Civil Suit No. 324/2019 (337/2019)
In the matter of:
Airports Authority of India
Corporate Office at
Rajiv Gandhi Bhawan, Safdarjung Airport
New Delhi110003
and
Regional Headquarter for Northern Region at
Operational Offices, Delhi Gurgaon Road
Rangpuri New Delhi
.....Plaintiff
Versus
Om Prakash
S/o late Sh.Jai Lal
Retd.Senior Assistant (Wireman)
R/oH.No.426, Village Mitrao
PONajafgarh, New Delhi110043
IInd Address:
Plot No.38, Vikas Enclave Line Paar
Bahadurgah Haryana
....Defendant
CS No. 324/2019 (337/2019)
Airport Authority of India v. Om Prakash
Page no. 1 of 17
Date of Institution of Suit : 16.04.2019
Date of reserving judgment : 29.04.2022
Date of pronouncement : 29.04.2022
Appearance:
(i) Sh.Sunil Dutt, Advocate, Ld. Counsel for plaintiff
(ii) Sh.Umesh Yadav, Advocate Ld. Counsel for defendant
SUIT FOR RECOVERY OF Rs.3,64,114/ INCLUSIVE OF INTEREST
ALONG WITH PENDENTELITE AND FUTURE INTERREST @ 18%
P.A.
J U D G M E N T:
1. The present suit has been filed by the plaintiff seeking recovery of Rs.3,64,114/ along with pendentline and future interest at the rate of 18% p.a. from defendant.
2. Relevant facts as emanating from the plaint, giving rise to the cause of action in favour of plaintiff, for filing the present suit are that :
a) The plaintiff i.e. Airport Authority of India has been constituted as a Statutory Body by the Airports Authority of India Act, 1994 and is responsible for creating, upgrading, maintaining and managing civil aviation infrastructure both on the ground and air space in the country. The present suit has been filed by Sh.M.M.S.Chauhan, Sr.Manager (HR) in terms of authorization dated 01.04.2019.
b) It is averred that defendant was appointed as Assistant Wireman CS No. 324/2019 (337/2019) Airport Authority of India v. Om Prakash Page no. 2 of 17 in the plaintiff office on 01.07.1990 and retired on 31.07.2012. It is averred that during his service, defendant applied advancement of loan of Rs.7.50 lakhs for construction of his house situated at Plot No.38, Vikas Enclave, Line Paar, Bahadurgarh, Haryana (in short, the said property) on 05.07.2002. The plaintiff had sanction a loan of Rs.5 lakhs to defendant in terms of sanction order dated 02.09.2002.
c) It is further averred that at the time of availing loan, defendant had executed memorandum of entry dated 10.09.2002 through which defendant had created equitable mortgage by depositing original title deeds along with other necessary documents with plaintiff relating to the said property intending to create a charge/security for repayment of Rs.5 lakhs. The defendant had bind himself to repay all loan amount with interest taken by him during his service from plaintiff. The loan was to be repaid in monthly installment of Rs.5,000/ including interest starting from January 2003.
d) It is further submitted that during the loan period some of the monthly installments were not deducted from the salary of defendant on his request due to his urgent financial crises. The loan was to be cleared till the date of retirement i.e. 31.07.2012, however, the same could not be cleared by defendant. It is further submitted that defendant lastly paid Rs.5,000/ in November 2012 and, thereafter, no payment was made by defendant towards repayment of the loan of Rs.5 lakhs.
CS No. 324/2019 (337/2019) Airport Authority of India v. Om Prakash Page no. 3 of 17
e) It is submitted that defendant had taken further loan of Rs.45,000/ from plaintiff towards purchase of computer for his personal use. The said loan was to be repaid in monthly installment of Rs.750/ by deducting the said amount from the salary of defendant.
f) It is submitted that defendant attained superannuation on 31.07.2012 and did not clear the outstanding amount towards HBA loan and computer loan availed during his service.
g) It is averred that despite repeated request and reminders dated 16.09.2016, 21.10.2016, 23.11.2016 and 03.10.2017 made to defendant, defendant, intentionally and deliberately avoided to clear the outstanding amount towards HBA loan and computer loan.
h) The defendant has created equitable mortgage by depositing original sale deed with plaintiff along with acknowledgment having creating the charge for securing loan and plaintiff has every right to foreclose the equitable mortgage and sale the said property to recover the outstanding amount of Rs.3,64,114/. The period of limitation to foreclose the mortgage is 12 years from November 2012 when last installment was paid by defendant to clear the outstanding loan amount.
i) Plaintiff issued legal notice dated 23.04.2018 to defendant which was served upon him on 27.04.2018. Despite service of notice, CS No. 324/2019 (337/2019) Airport Authority of India v. Om Prakash Page no. 4 of 17 defendant has not paid even a single penny to plaintiff. A decree for recovery of Rs.3,64,114/ along with pendente lite and future interest be passed in favour of plaintiff and against defendant.
3. The defendant was served with summons for settlement of issues and filed written statement and, inter alia, submitted that plaintiff has not come with clean hands. The plaintiff has malafidely, dishonestly filed the present suit by suppressing the material facts. The plaintiff has not disclosed anywhere in the plaint that in the year 2012, plaintiff itself had given no dues/claim/clearance certificate to defendant and thereafter only defendant got his retirement dues. The plaintiff had stopped various retirement benefits of defendant and even not adjusted the alleged loan account, therefore, defendant has no liability towards plaintiff. It is submitted that suit is barred by limitation and suit of plaintiff is liable to be dismissed in as much as plaintiff wants to use an unregistered mortgage deed on foundation of recovery suit which is not permissible in law. The plaintiff, by way of present suit, tried to make alleged recoveries of HBA loan and computer loan by a single suit and, therefore, suit is bad for misjoinder of cause of action.
4. Plaintiff filed replication to the written statement denying each and every allegation made in the written statement and reiterated the contents of the plaint.
CS No. 324/2019 (337/2019) Airport Authority of India v. Om Prakash Page no. 5 of 17
5. From the pleadings of the parties, following issues were framed on 08.09.2016 : ISSUES (1) Whether the defendant has availed a loan of Rs.5,00,000/ from the plaintiff company in terms of the loan document? OPP (2) If the answer to issue no.1 is in affirmative, whether the plaintiff is entitled to the decree of Rs.3,64,114/? OPP (3) Whether the plaintiff is entitled to interest thereupon, if so at what rate and for which period? OPP (4) Whether the plaintiff has not come to the court with clean hands? OPD (5) Whether the suit filed by the plaintiff is barred by Limitation?
OPD (6) Whether the suit is barred by mis joinder of two cause of actions? OPD
6. The parties to the suit were thereafter called upon to substantiate their respective cases by leading evidence.
7. The plaintiff has examined Sh.M.M.S.Chauhan as PW1 and has tendered his affidavit as Ex.PW1/A. Examinationinchief by way of affidavit as well as crossexamination of PW1 is not being reproduced for the sake of brevity and the material portion thereof, more particularly the one referred to during the arguments, shall be considered while appreciating the rival contentions advanced by Ld. Counsels for the parties while considering the issues so framed. PW1 has proved the following documents:
1. Authority Letter, dated 01.04.2019 is Ex.PW1/1.
2. Delegation of Powers is exhibited is Ex.PW1/2.
3. Service certificate, dated 25.10.2018 is Ex.PW1/3.
CS No. 324/2019 (337/2019) Airport Authority of India v. Om Prakash Page no. 6 of 17
4. Sanction form i.e. application for advance of construction of house is Ex.PW1/4,
5. Sanction Order, dated 02.09.2002 is Ex.PW1/5,
6. Memorandum of entry is Ex.PW1/6,
7. Copy of sale deed, dated 10.05.2002 is Ex.PW1/7,
8. Statement of account of calculation of interest on house building advance is Ex.PW1/8,
9. AAI HBA regulations, 2003 is Ex.PW1/9,
10. Letter dated 16.09.2016 is Ex.PW1/10,
11. Letter dated 21.10.2016 is Ex.PW1/11,
12. Letter dated 23.11.2016 is Ex.PW1/12,
13. Letter dated 18.09.2017 is Ex.PW1/13,
14. Letter dated 03.10.2017 is Ex.PW1/14,
15. Statement of account of computer loan is Ex.PW1/15,
16. Legal notice dated 23.04.2018 alongwith postal receipts and proof of service is Ex.PW1/16,
8. PW2 Sh.Rajender Singh has tendered his affidavit as Ex.PW2/A and proved authority letter dated 02.11.2021.
9. Thereafter, plaintiff evidence was closed and mater was listed for defendants evidence.
10. Defendant in order to prove its case has examined defendant himself as DW1. He tendered his affidavit as Ex.DW1/A. Examinationinchief by way of affidavit as well as crossexamination of DW1 is not being reproduced for the sake of brevity and the material portion thereof, more particularly the one referred to during the arguments, shall be considered while appreciating the rival contentions advanced by Ld. Counsels for the parties while considering the issues so framed. Thereafter, the defendant evidence was closed.
CS No. 324/2019 (337/2019) Airport Authority of India v. Om Prakash Page no. 7 of 17
11. I have heard Ld counsels for the parties and have carefully gone through the record.
12. My issue wise findings in the matter are as under :
Issue no. 1,2 & 3 These issues are overlapping each other and are, therefore, disposed off by this common order. Plaintiff, to prove its case, led evidence of Sh. M.M.S Chauhan through his affidavit by way of evidence Ex. PW1/A and reiterated the contents of plaint. PW1 testified that a loan of ₹ 5 lakhs was sanctioned to defendant in terms of section order dated 02.09.2002 (Ex. PW 1/5) and defendant had created equitable mortgage by depositing title deeds of the said property along with other necessary documents in respect of the said property with an intent to create charge/security for repayment of the loan of ₹ 5 lakhs. The said memorandum of entry dated 10.09.2002 is Ex. PW1/6.
13. The installments of ₹ 5000 per month were started deducting from the salary of the defendant, however, during the loan period, some of the monthly installments were not deducted on request of the defendant. Therefore, loan which was to be cleared till 31.07.2012 could not be cleared by defendant and last payment of ₹ 5000 was made by defendant in the month of November 2012. Defendant deposited the original title deeds of the said property in lieu of the loan of ₹ 5 lakhs received by him in terms of the AAI HBA CS No. 324/2019 (337/2019) Airport Authority of India v. Om Prakash Page no. 8 of 17 Regulations Ex. PW1/9. Various letters were issued to the defendant to clear the outstanding dues, however, defendant failed to repay the same, and a sum of ₹ 3,64,114/ is due as follows :
Sl. Particulars Principal Interest (till filing Total no. Amount of this suit) 1 HBA 1,10,000 2,01,632 3,11,632 2 Computer Loan 12,000 40,482 52,482 Total 3,64,114
14. In crossexamination, PW1 admitted that the defendant had availed two loans, first loan for house building loan and second loan for computer. The papers of mortgage were not registered. He did not know whether any inspection of the said property was carried out before or after the grant of loan. He admitted that as per the instructions of the competent authority, the benefits of the employee can be stopped depending on the dues. The memorandum of entry was accepted by plaintiff and HBA loan was granted to defendant.
15. PW2, Shri Rajinder Singh, Assistant Manager testified on the lines of PW1. PW2 testified that the plaintiff issued 'no due certificate to defendant due to fault of officials of the department of plaintiff and disciplinary action has been initiated against the erring officials by issuing the chargesheet. The terminal benefits were released to the defendant, as NOC was granted, however, medical benefits were stopped.
CS No. 324/2019 (337/2019) Airport Authority of India v. Om Prakash Page no. 9 of 17
16. To rebut the case of the plaintiff, defendant appeared as DW1 and testified that the defendant has taken a loan from the plaintiff for buying a computer which has been repaid within time by the defendant and the defendant has also taken a loan of ₹ 5 lakhs by way of deposit of title deeds of the said property which are still in the possession of plaintiff. Defendant has repaid all the loan to plaintiff and that is why, no due certificate has been issued by plaintiff and admitted by PW1 as Ex. PW1/DX1.
17. It may be noted that defendant has pleaded in his written statement has testified through evidence by way of affidavit that he has repaid all loans to plaintiff. However, as per the material placed on record, namely, the statement of account of calculation of interest on house building advance Ex. PW1/8 and statement of account of computer loan Ex. PW1/5, defendant is liable to pay an amount of HBA i.e. Rs. 3,11,632/ and computer loan of Rs. 52,482/ totalling to an amount of Rs. 3,64,114/
18. Nothing has been placed on record by defendant to controvert the contents of these documents, as to how and in what manner, he has cleared both the loans which admittedly were availed by him during his employment with the plaintiff. Therefore, these issues are decided in favour of plaintiff and against defendant.
CS No. 324/2019 (337/2019) Airport Authority of India v. Om Prakash Page no. 10 of 17 Issue no. 5
19. The onus to prove this issue is on the defendant. In order to prove this issue ld. counsel for defendant has contended that plaintiff has filed the present simple suit for recovery of the above said two loans, however, the said suit is barred by limitation in as much as the last payment, admittedly was paid by defendant to plaintiff in the year 2012, whereas, suit has been filed in the year 2019, therefore, prima facie suit is barred by limitation.
20. Per contra ld. counsel for plaintiff has contended that plaintiff, though not filed a suit under Order 34 CPC as a mortgage suit, however, in para no. 11 of the plaint, he has made averment in this regard, therefore, Article 62 of Schedule 1 of the Limitation Act, the period of limitation to foreclose the said mortgage by way of depositing the title deed of the said property, is 12 years from the year 2012, therefore, the suit is within period of limitation.
21. In rebuttal, ld. counsel for defendant has contended by merely making an averment in the plaint regarding execution of mortgage by depositing title deeds of the said property, by defendant for availing the said loan, suit has not been filed as per the mandate of provision of Order 34 CPC, therefore, plaintiff is not entitled to seek applicability of the Article 62 of Schedule 1 of Limitation Act to the present suit. It is further contended that apart from the fact the said mortgage deed is neither registered, nor the same is permissible in Delhi, as per the mandate of Section 59 of the Transfer of Property Act CS No. 324/2019 (337/2019) Airport Authority of India v. Om Prakash Page no. 11 of 17 as the State Government has not issued any notification regarding making permissible in Delhi the mortgage by deposit of title deeds.
22. It may be noted that Order 34 provides for filing of the suit related to mortgages of immovable property and parties to suits are to seek relief for foreclosure, sale and redemption of the mortgage property. The rule 1 of Order 34 CPC provides for the suit in respect of the mortgaged property, however, the suit has not been filed as per the procedure prescribed under Order 34 CPC. The plaintiff has made averment in para no. 11 of the plaint that defendant has created equitable mortgage by depositing of title deeds of the said property and has created a charge for securing loan and, therefore, plaintiff has every right to foreclose the equitable mortgage and sale the said property to recover the outstanding amount along with interest is not sufficient to bring the suit within the purview of Order 34 CPC so as to seek applicability of Article 62 of Schedule 1 of the Limitation Act to the suit.
23. So far as the mandatory requirement of registration of the memorandum of entry (Ex. PW1/6) is concerned, suffice is to say that Section 58 of the Transfer of Property Act provides for mortgage by depositing of title deeds. The mortgage by deposit of titledeeds in terms of Section 58(f) of the Transfer of Property Act surely acknowledges the receipt and transfer of interest and, therefore, prima facie it appears that its registration is compulsory. However, Section 59 of the Transfer of Property Act mandates that every mortgage other than a mortgage by deposit of titledeeds can be effected only by a CS No. 324/2019 (337/2019) Airport Authority of India v. Om Prakash Page no. 12 of 17 registered instrument. When the debtor deposits with the creditor title deeds of the property for the purpose of security, it becomes mortgage in terms of Section 58(f) of the Transfer of Property Act and no registered instrument is required under Section 59 thereof as in other classes of mortgage. The essence of mortgage by deposit of title deeds is handing over by a borrower to the creditor titledeeds of immovable property with the intention that those documents shall constitute security, enabling the creditor to recover the money lent. After the deposit of the titledeeds the creditor and borrower may record the transaction in a memorandum but such a memorandum would not be an instrument of mortgage. A memorandum reducing other terms and conditions with regard to the deposit in the form of a document, however, shall require registration under Section 17(1)c) of the Registration Act, but in a case in which such a document does not incorporate any term and condition, it is merely evidential and does not require registration.
24. It may be noted that nothing has been brought on record to show existence of an instrument which has created or extinguished any right or liability, the original deeds of the said property has been deposited with the plaintiff through memorandum of entry (Ex. PW1/6), therefore, the charge of mortgage in revenue record also can be entered into in respect of the mortgage by depositing of title deeds, as such the said mortgage by depositing of title deeds does not require registration. In view of the same this memorandum of entry (Ex. PW1/6) did not require registration and is admissible in law as a CS No. 324/2019 (337/2019) Airport Authority of India v. Om Prakash Page no. 13 of 17 mortgage by depositing of the title deeds of the said property. However, as stated above the plaintiff has not filed a mortgage suit, therefore, is not entitled to benefit of this memorandum of entry (Ex. PW1/6) whereby mortgage by depositing the title deeds of the said property was executed by defendant in favour of the plaintiff and resultantly plaintiff is not entitled to seek applicability of Article 62 of Schedule 1 of the Limitation Act.
25. At the fag end of the arguments, ld. counsel for the plaintiff has submitted that the Airport Authority of India is a part of Central Government being headed by the Ministry of Civil Aviation, Government of India, therefore, viewed from that angle, the plaintiff is to get the benefit of Article 112 of Schedule 1 of the Limitation Act whereby a period of 30 years is available to plaintiff to institute a suit against the private person.
26. In rebuttal, the contention of ld. counsel for the defendant is that airport authority of India is not the Central Government so as to avail the benefit of Article 112 of Schedule 1 of the Limitation Act, therefore, the suit of the plaintiff is barred by limitation and deserves to be dismissed.
27. In this regard, suffice is to say that though not quoted, reliance has been placed on DDA Vs. M/s Manohar Singh Sahny & Co., judgment passed by Hon'ble High Court of Delhi in RFA 1014/16, wherein, it has held that DDA is not a Central Government and, CS No. 324/2019 (337/2019) Airport Authority of India v. Om Prakash Page no. 14 of 17 therefore, cannot claim the benefit of Article 112 of the Schedule 1 of Limitation Act to file a suit against any person within a period of 30 years. The relevant portion is reproduced as under :
"13. The contention of the learned counsel for the appellant is that the Government of India (Allocation of Business) Rules which have been drawn in exercise of the powers of Clause (3) of Article 77 of the Constitution of India laid down that the Central Government will function from the various departments and at serial number of the First Schedule there is a department of Urban Development, Shahari Vikas Mantralya mentioned which is functioning through various departments of its own including the DDA which is essentially a statutory body for the purpose of acquisition and distribution of nazul land and creation of Master and Zonal Plan, therefore, it is equivalent to Central Government. I do not agree with said contention of the learned counsel for the appellant. Firstly, the plea that Article 112 of Limitation Act, 1963 would be applicable was not taken by DDA in trial Court or the first Appellate Court. Secondly, it was also not pleaded that DDA is suing the respondent on behalf of Central Govt. This view can be fortified by a recent judgment of the Supreme Court in Bharat Sanchar Nigam Ltd. v. Pawan Kumar Gupta , 2015 (10) SCALE 337. In the said case it was held that period of limitation is not 30 years as the appellant Company (BSNL) cannot be equated with Central Govt. since it is a distinctly independent and separate entity. It was further observed that Article 112 of Limitation Act does not incorporate agency or instrumentality of Govt. The facts of the aforesaid squarely fit to the present case."
A bare perusal of this ratio of law leads to conclude that only Central Government is entitled to benefit of Article 112 of Schedule 1 of the Limitation Act and airport authority of India viewed from any angle, cannot be stated to be an authority of Central Government so as to seek the benefit provided under article 112 of CS No. 324/2019 (337/2019) Airport Authority of India v. Om Prakash Page no. 15 of 17 Schedule 1 of the Limitation Act, therefore, the period of limitation for filing the present suit is of 3 years and the suit is hopelessly barred by limitation. This issue is decided in favour of defendant and against the plaintiff.
Issue no. 6
28. The onus to prove this issue is on the defendant. It is the admitted position that the defendant has availed two loans i.e. first loan for house building and second loan for computer from the plaintiff and the suit has been filed in respect of the said loan transactions. Therefore, it cannot be stated that the suit barred by mis joinder of two cause of actions. Therefore, issue no. 6 is decided against the defendant and in favour of the plaintiff.
Issue no. 4
29. The onus to prove this issue is on the defendant. In order to prove that the plaintiff has not come to the court with clean hands, the defendant has led no evidence in this regard. Otherwise, plaintiff has filed suit for recovery of two loans i.e. first loan for house building and second loan for computer availed by defendant from plaintiff, therefore, it cannot be said that the plaintiff has not approached this court with clean hands. This issue is accordingly decided against the defendant and in favour of plaintiff.
CS No. 324/2019 (337/2019) Airport Authority of India v. Om Prakash Page no. 16 of 17 In view of my findings on the issues aforesaid, the suit filed by the plaintiff is accordingly dismissed.
Decree sheet be prepared accordingly.
File be consigned to record room.
Digitally
signed by
VIJAY VIJAY KUMAR
Announced in the open court on KUMAR
DAHIYA
Date:
29th day of April 2022 DAHIYA 2022.05.17
14:09:14
+0530
(V.K. DAHIYA)
ADDL.DISTRICT JUDGE01 (SOUTH WEST)
DWARKA DISTRICT COURTS: NEW DELHI.
CS No. 324/2019 (337/2019)
Airport Authority of India v. Om Prakash
Page no. 17 of 17